Many employees of apartment communities live on-site and are provided an apartment as part of their compensation package. This apartment may be free of charge or at a reduced rental amount as long as the resident is employed by the apartment community. Thousands of employees are in this situation and are living on-site, usually under some form of employee rental agreement or addendum. However, the time comes when the employment of the resident may end, either voluntarily or involuntarily, fancy words for the employee quitting or getting fired. Sometimes it is an amicable breakup with the employee getting another job, while other times the employee is fired and you want him or her off the property as soon as possible, preferably yesterday! The mechanics of removing the ex-employee from the property all depend on the employee rental addendum and how you or your company deals with the situation. Mistakes are constantly being made, resulting in difficult evictions or delays in having the former employee leave the premises. In some cases the continued presence of the former employee on the property causes increased liability to the apartment owner or manager, and can seriously affect operations. The former employee may begin to act in a vindictive fashion, causing disturbances, badmouthing management, or otherwise interfering with business operations. Let’s face it: sometimes residents go “off the deep end”, and your former employee is no more or less likely to do this than any of your other residents.

Termination of Employment

This is handled in most companies by upper management according to the guidelines of their human resources department, and laws or rules covering this will not be covered in this short article. Your job will be to make sure that the former employee gets off of the property, and we highly recommend you immediately call your attorney for guidance from the very start.

The Employee Lease Addendum

For this discussion, we are going to assume your former employee signed an Employee Lease Addendum. If they did not, you have more significant problems. A typical Employee Lease Addendum will state what will happen if the resident quits or is fired. For us attorneys, the most important clause is the one that states how long the resident has to vacate the premises. We typically see timeframes between 3 days and 2 weeks as to when the resident must vacate.

The Call

Our office usually gets the call from the property manager about a week after the former employee was to vacate the property, desperately asking us to get the resident evicted as soon as possible. This is when we begin to ask some crucial questions, the answers to which will have an impact on how or if we are able to evict the resident.

1. Are there more than one resident’s on the lease, and did all of them sign the Employee Lease Addendum?

 

We often see that Bill and Jane both signed the lease, but only Bill, the maintenance tech, signed the Employee Lease addendum. This can pose a major problem, as really the Employee Lease Addendum only applies to Bill and not his wife Jane. Big mistake. ALWAYS make sure all the residents sign the Employee Lease Addendum, not just the employee. This mistake is made all the time and will completely complicate if not make an eviction impossible.

 

2. How much time does the former employee have to vacate and did you give them notice?

 

Notice you ask? What notice? You assume that since the Employee Lease Addendum states that the employee must vacate within 15 days, this is notice enough. Think about this. Your lease states that the resident is supposed to pay the rent, but you have to give them a Three Day Notice. To non-renew a resident, you need to give the resident a Notice of Non-Renewal. A resident who has unauthorized occupants needs to get a Seven Day Notice to Cure. Why are you not giving the former employee a notice to vacate? Because you don’t have one! Is it really necessary to give the former employee notice? Perhaps not, but it cuts down on any confusion as to the firing or quitting date, or exactly what date the resident must vacate. It is wise to use an Employee Lease Termination Addendum which clearly states the day the former employee must vacate.

The Former Employee Needs More Time

A common request by former employees who must vacate per the Employee Lease Addendum is that they need more time. They ask you and you say, “no”, they ask your regional manager who says “no”, and then they get high up in the corporate offices, and some big wig says “yes”, trying to avoid any kind of litigation. Now when does the former employee have to vacate? They have been given a verbal extension by someone in New York! If you are going to allow the former employee more time, make sure they sign an Agreement to vacate. Who are “they”?: the former employee and anyone else who is on the lease agreement, and hopefully on the Employee Lease Addendum.

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NOTE: Before reading this article, we urge you to read Understanding The New Early Termination Law so you fully understand the new law before examining how it may apply to single family home management.

Should the new law be used in Single Family Management?

As you can see, if the new law is to be used, the tenant must be given an addendum at the time of lease signing which will give the tenant a choice of what they will owe if they vacate the premises before the expiration of the lease. The tenant can choose to owe a fixed sum of money not to exceed 2 months' rent or can choose to owe the rent due under the terms of the lease as it becomes due until the unit is re-rented or the end of the lease, whatever occurs first. Let us assume that you decide to use the new law, you provide the tenant with the addendum at lease signing, and he tenant chooses to owe the 2 months' rent if she vacates the lease early. What happens?

1. Just because the tenant made the choice to owe the 2 months' rent, it by no means that she will ever pay it. She simply will owe it.

2. The unit may stay vacant for more than 2 months, and the property owner may wish to go after the tenant to collect. When the owner finds out that he is limited to only going after the tenant for 2 months' rent, he will be surprised and angry, wondering what happened, and now will be looking to you for redress.

Full disclosure and permission is needed

If you wish to use the new law and are prepared to present the tenant with the addendum at lease signing, you MUST get prior permission from the property owner to do this, and fully explain to the owner that if the tenant chooses liquidated damages, you will not be able to charge the tenant ANYTHING other than the liquidated damages of up to 2 months' rent plus the rent that was owed to you, if any, at the time the tenant vacated. If you have a clause in your lease which states that the tenant is liable to pay a commission or any other non- physical premises damages, you probably CANNOT charge this to the tenant. A good argument can be made that a liquidated damages charge is a fixed amount, and that you cannot add other amounts to it.

Permission in writing

If you wish to use the new law, the property owner should give you this permission in writing. No verbal agreement should be allowed in this situation, as the use of the addendum and the tenant picking the liquidated damages choice can seriously infringe upon the rights of the property owner to pursue the tenant. Many property owners will not understand the new law. You do not want to give the property owner any idea or expectation that just because the tenant may pick the liquidated damages choice that the tenant will ever pay the money. More likely, the tenant will not pay the money.

When is the new law advantageous?

The new law is only advantageous to the property owner if the following occurs:

1. The unit is able to be re-rented within 2 months.
2. The tenant picks the liquidated damages choice.
3. The tenant actually pays the money he or she owes.

These three things must all occur for the new law to have any real benefit to the property owner. If you are in a situation under which it usually takes more than 2 months to re-rent a unit, you would definitely not want to use the new law.

Conclusion

Unfortunately the new law is not as useful as it may seem to the single family home manager. While it started out good, it had to be amended to appease the Governor, and now gives the tenant a choice in the matter. We have no control over that choice. The new law is more beneficial in the multi-family management situation, when there is one property owner who has decided that being able to charge liquidated damages, if the tenant so chooses, is a wise business decision. For now, we do not recommend its use in single family management.

 

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In the event of domestic violence, a party is able, by filing a sworn affidavit with the court, to get a temporary injunction for protection, also known as a restraining order, against another party. This injunction goes into effect almost immediately, and a hearing is set at a later time when a judge determines if the injunction is to continue or if it will be dismissed. The main purpose of an injunction is to keep one person away from another person, to prevent a possible escalation or continuation of violence or threats of violence.

A property manager is often made aware of the existence of an injunction by the person who has sought the injunction, the Petitioner. In most but not all, the Petitioner is a female resident. Situations will arise where the property manager is unwillingly brought into the picture. The property manager may be asked to change locks or may be asked by the Respondent to have access to the rental unit.

What Is Domestic Violence?: Domestic Violence as used in F.S. 741.28 - 741.31: "Domestic Violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.

"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who have a child in common, regardless of whether they have been married or have resided together at any time.

What is Repeat Violence?: Violence as used in Florida Statute 784.046, means any assault, battery, sexual battery, or stalking by a person against any other person. "Repeat Violence" means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.

What is Dating Violence? Dating violence means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature.

What Will an Injunction Do for the Petitioner?

It will legally prevent an alleged abuser from committing any further acts of violence to the Petitioner or from threatening the Petitioner.

It may provide the Petitioner sole possession of a dwelling the Petitioner and the Respondent shared.

It may restrain the Respondent from going to, in or within 500 feet of Petitioner’s residence, place of employment, place of school, or places the Petitioner and family frequent.

It may provide no contact between the parties, in any manner.

It may require the Respondent attend counseling, treatment or a batterer's intervention program.

It may require the Respondent not to possess a firearm or to surrender any firearms to law enforcement.

It may address awarding temporary custody of any minor child (ren) between the parties, and visitation of the child (ren).

How Does A Party Get An Injunction Against Another Person?

The Petitioner must go to the courthouse and file a complaint. The person should bring with them police reports or referral cards furnished by a law enforcement officer, if any, proof of identification, specific dates of abuse or threats of abuse, specific locations where abuse or threats occurred, a mailing address of a friend or relative if the Petitioner chooses to keep the residence address "confidential" as provided by law, a picture, if any of the Respondent, to provide to Sheriff's Department for service purposes. The Petitioner must know and disclose the full legal name of Respondent, physical description of Respondent, current residence address of Respondent, including telephone number, social security number, if possible, and driver’s license number, Respondent's employer and employer's address and phone number, if possible, and Respondent's vehicle information, including make, model, color, year and tag number if any.

The “Temporary Injunction”

Upon review, the court may issue a “temporary injunction” which must then be served on the Respondent. The Petitioner can notify the Sheriff as to the whereabouts of the Respondent so the Respondent can be served. The key word here is “temporary”. The injunction will only last a certain fixed number of days, and then a court hearing will be set and held, at which the judge will decide if the injunction will be made permanent, the terms of the injunction, or if the injunction will be dropped. If the Petitioner fails to show up in court and pursue the injunction, the injunction will be dissolved. This is a common occurrence, so it is important that the property manager understands that an injunction may not be in effect when the Petitioner says it is in effect. This is where law enforcement comes into play, as they know through their computer system the actual status of the injunction. Never take the Petitioner’s or Respondent’s word for anything regarding the injunction. Get law enforcement involved.

Requests to Change Locks

In the event a property manager is asked to change locks on the premises, our office recommends that this is not done by the property manager, unless the property manager is specifically directed to do so by a court order. If the Petitioner wishes to changes the locks, we recommend that the Petitioner not be stopped from changing the locks and the Petitioner should be required to provide the property manager with a key.

Request For Access

A common scenario occurs when the Respondent comes into the property manager’s office and demands to be let into the unit or demands a key to the unit. Since the lease contract is between the parties and the property manager, it may seem that the property manager is required to grant the Respondent access. The police should be called immediately and asked to come to the property. Often the Respondent simply wishes to get clothing or other personal items from the property. The police will often accompany the Respondent to the rental unit, at which time the property manager, upon request, can grant access to the police and the Respondent. Often when the property manager indicates that the police will need to be involved, the Respondent takes off out of the office and does not wish to deal with the police. Never should the property manager take it upon himself or herself to assist the Respondent. Law enforcement should be involved.

Requests To Be Let Out Of The Lease

The Petitioner or the Respondent may request to be let out of the lease, either because they no longer have legal access due to the injunction, or the Petitioner wishes to move away from the property to a place where the Respondent cannot locate him or her. It will be a business decision by your owner or company as to whether this request will be granted. If it is granted, the other party does not have to agree to this request, and you can let either or both parties out of the lease obligation. Your attorney should be called in cases such as these, so the proper documents can be executed. Remember that if you let the Petitioner out of the lease, the Respondent still has a contract with you and has a legal right to possession of the rental unit, even though this right of possession may not be able to be exercised due to the injunction. Never remove the Respondent’s property from the unit or take possession, unless it is certain that all parties have relinquished to you full possession of the premises.

Requests By The Petitioner To Take the Respondent Off the Lease

In some cases, once the injunction becomes permanent or in the event the Respondent is incarcerated or otherwise indisposed, the Petitioner will request that the Respondent be taken off of the lease. One resident cannot unilaterally take another resident off of a lease. The party being taken off of the lease must agree to this. No matter what story you get from the resident, you cannot take the Respondent off of the lease. Your contract is with both the Petitioner and the Respondent. Their personal issues are not your problem, and unless you are ordered by a judge to remove an individual from a lease, you cannot oblige.

The Petitioner Vacates – Is the Unit Abandoned or Surrendered?

The Petitioner who was granted occupancy of the rental unit by the court may vacate the premises. Is the unit abandoned? Can it be surrendered? We are not sure. Since the lease agreement is valid with both parties, the fact that the Petitioner vacates most likely cannot grant possession to the manager. After all, the Respondent would be living there if he or she could, but simply cannot as the injunction prohibits this. Personal property may be left behind by the Petitioner who vacates the premises, and this property may belong to the Respondent. The Respondent may even petition the court to have the right to use the premises in the event the Petitioner vacates. This is an odd situation, and we urge you to call your attorney to see what options you may have based on the fact pattern.

Our Recommendations

Since an injunction is not an everyday occurrence the property manager must deal with, we strongly urge you to call your attorney the moment the issue arises. Handling the matter incorrectly could result in serious liability for the manager or property manager. Most importantly, never get emotionally involved with a dispute between residents. Taking sides can often lead to poor judgment calls, surprises and retaliation against the property manager.

 

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Identity theft is one of the fastest growing crimes in the United States today, affecting approximately 10 million people each year. Criminals are engaging in everything from sophisticated computer hacking to dumpster diving to obtain private information on individuals, which can be later used to obtain credit, or access for emptying out bank accounts. A typical manager will be in possession of documents which would be highly valuable to an identity thief. The primary documents which have the most information useful to an identity thief are the Application for Residency and the Consumer Report. The application will have the name, date of birth, Social Security number and bank account information of the applicant, all of which can be used by a thief. The Consumer Report will contain a list of all the applicants’ credit cards and other valuable information. In response to the rapid increase in identity theft fraud, the Federal Government through the Federal Trade Commission (FTC) has enacted new laws which directly affect the manager.

The Disposal Rule

Effective June 1, 2005, if you are a business that uses a consumer report, more commonly known as a Credit Report, you must dispose of this information in a specific fashion. Since most managers ask for an Application and subsequently receive a Credit Report, it is apparent that the Disposal Rules apply to the manager. The Disposal Rule requires disposal practices which are “reasonable and appropriate” to prevent the unauthorized access to or use of information in a “consumer report”. You will note that the law says “consumer report” and not “Application”. Many Federal rules when initially introduced are vague and confusing. As time goes by, the courts and the FTC “interpret” the rule. Obviously the purpose of the rule is to prevent identity theft; thus we strongly recommend that you apply the rule to the application as well as the Credit Report, as this is consistent with the intent and legislative history of the rule.

How Long and Where Should We Keep Documents?

The statute of limitation regarding disputes arising out of a contract such as a lease is 5 years. We recommend that you do not dispose of any files for a minimum of 5.5 years from the time the resident vacates the premises. While this may seem a bit extreme and cumbersome, if you are sued and do not have your file, anything can and will happen in court, and it will not be pleasant. Some people intentionally wait until the Statute of Limitations is almost up; as they know that most people will not have kept the records for this length of time. Your documents need to be kept in a safe place in your office and subsequently in storage. Most managers do not keep these files locked up or have a written plan in place as to file security or destruction. This needs to change.

Paper Records

Files should always be kept in a locked room or locked filing cabinets with access limited to persons designated in writing as having permission. These should only be employees that are bonded. Most managers do not consider the value the paper files have to an identity thief and are not in any compliance whatsoever. If records are sent to storage, there needs to be a specific procedure in place to prove chain of custody and detailing exactly who has access to files and when they accessed the files.

Computer Records

Most people find it difficult to throw out old computers. They pile up in the back room and eventually get thrown out or donated years after they will not run current programs. Most managers do not have password protection in place on their computers, making them vulnerable to an identity thief. Finally, most managers who are careful about backing up their computer data do not have a specific procedure for storing these backups. Managers need to immediately evaluate the safety of the data and create a written procedure which needs to be followed. If information from the resident’s application and consumer report will not be stored on or transmitted through a computer, the danger is significantly lessened.

How Should Documents, Hard Drives and Backups be Destroyed?

Paper documents should be shredded or pulverized. There are different levels of paper document destruction available, and we recommend that the documents are pulverized to avoid any problems later. Many managers purchase store bought shredders and pulverizes, but if operating on any kind of a large scale, document destruction companies will need to be utilized to carry out the larger document destruction tasks. Many local garbage disposal companies are jumping into the business of document destruction, and it is prudent to check this in addition to the smaller private companies. As chain of custody is crucial, most of the document destruction companies provide an on-site service that can be observed by the manager to avoid someone taking the documents to another location and using them for illegal means. Hard drives and backups can be physically destroyed by a manager or destroyed by the document destruction companies who deal with this as well as paper documents. The key is to have a plan in place, and this should be part of your written procedures for document safekeeping and disposal.

Does Everything Have to be Disposed of Properly?

Fortunately only certain information has to be disposed of according to the FTC rules. An examination of your resident files will probably show that only a few sheets contain information which could be successfully used by an identity thief. Most likely only the application and the consumer report will contain the sensitive information; therefore your procedure may limit the disposal to the destruction of only those documents.

FEDERAL TRADE COMMISSION INFORMATION

Disposing of Consumer Report Information?
New Rule Tells How

In an effort to protect the privacy of consumer information and reduce the risk of fraud and identity theft, a new federal rule is requiring businesses to take appropriate measures to dispose of sensitive information derived from consumer reports.

Any business or individual who uses a consumer report for a business purpose is subject to the requirements of the Disposal Rule. The Rule requires the proper disposal of information in consumer reports and records to protect against “unauthorized access to or use of the information.” The Federal Trade Commission, the nation’s consumer protection agency, enforces the Disposal Rule.

According to the FTC, the standard for the proper disposal of information derived from a consumer report is flexible, and allows the organizations and individuals covered by the Rule to determine what measures are reasonable based on the sensitivity of the information, the costs and benefits of different disposal methods, and changes in technology.

Although the Disposal Rule applies to consumer reports and the information derived from consumer reports, the FTC encourages those who dispose of any records containing a consumer’s personal or financial information to take similar protective measures.

Who Must Comply?

The Disposal Rule applies to people and both large and small organizations that use consumer reports. Among those who must comply with the Rule are:

Consumer reporting companies
Lenders
Insurers
Employers
Managers
Government agencies
Mortgage brokers
Automobile dealers
Attorneys or private investigators
Debt collectors

Individuals who obtain a credit report on prospective nannies, contractors, or residents Entities that maintain information in consumer reports as part of their role as service providers to other organizations covered by the Rule

What Information Does the Disposal Rule Cover?

The Disposal Rule applies to consumer reports or information derived from consumer reports. The Fair Credit Reporting Act defines the term consumer report to include information obtained from a consumer reporting company that is used – or expected to be used – in establishing a consumer’s eligibility for credit, employment, or insurance, among other purposes. Credit reports and credit scores are consumer reports. So are reports businesses or individuals receive with information relating to employment background, check writing history, insurance claims, residential or resident history, or medical history.

What is ‘Proper’ Disposal?

The Disposal Rule requires disposal practices that are reasonable and appropriate to prevent the unauthorized access to – or use of – information in a consumer report. For example, reasonable measures for disposing of consumer report information could include establishing and complying with policies to:

burn, pulverize, or shred papers containing consumer report information so that the information cannot be read or reconstructed;

destroy or erase electronic files or media containing consumer report information so that the information cannot be read or reconstructed;

conduct due diligence and hire a document destruction contractor to dispose of material specifically identified as consumer report information consistent with the Rule. Due diligence could include:

reviewing an independent audit of a disposal company’s operations and/or its compliance with the Rule;

obtaining information about the disposal company from several references;

requiring that the disposal company be certified by a recognized trade association;

reviewing and evaluating the disposal company’s information security policies or procedures.

The FTC says that financial institutions that are subject to both the Disposal Rule and the Gramm-Leach-Bliley (GLB) Safeguards Rule should incorporate practices dealing with the proper disposal of consumer information into the information security program that the Safeguards Rule requires ( ftc.gov/privacy/privacyinitiatives/safeguards.html).

The Fair and Accurate Credit Transactions Act, which was enacted in 2003, directed the FTC, the Federal Reserve Board, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, the National Credit Union Administration, and the Securities and Exchange Commission to adopt comparable and consistent rules regarding the disposal of sensitive consumer report information. The FTC’s Disposal Rule became effective June 1, 2005. It was published in the Federal Register on November 24, 2004 69 Fed. Reg. 68,690, and is available at http://www.ftc.gov/os/2004/11/041118disposalfrn.pdf

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit FTC.GOV or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

Your Opportunity to Comment The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency’s responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REGFAIR (1-888-734-3247) or go to www.sba.gov/ombudsman.

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Manager may not prohibit resident from displaying United States Flag on premises

PRIOR LAW: Prior to July 1, 2004 a manager could prohibit resident by the lease terms from displaying or hanging a flag or any other item from or on the premises.

NEW LAW: A manager may not prohibit a resident from displaying a United States flag on the premises as long as it meets certain requirements.

SAMPLE LEASE WORDING: "Resident may display a "United States Flag", commonly known as the "Stars and Stripes", as long as this flag is portable, removable, cloth or plastic with a size not larger than 4.5 feet by 6 feet and is displayed in a respectful manner. This flag may not infringe on any other resident's area or space rented by another resident, including but not limited to a downstairs resident's lanai space if any. This flag, its pole or its base may not constitute a safety hazard to any person or property. In displaying the flag, resident shall not destroy, deface, damage, impair, or remove any part of the premises or property therein belonging to the manager nor permit any person to do so".

TEXT OF THE NEW FLAG LAW

FS 83.67 AS AMENDED

4) A manager may not prohibit a resident from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and one-half feet by 6 feet, in a respectful manner in or on the dwelling unit, regardless of any provision in the rental agreement dealing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The manager is not liable for damages caused by a United States flag displayed by a resident. Any United States flag may not infringe upon the space rented by any other resident.

 

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Your worst nightmare has come true. One of your residents comes into your office with a print out from the Florida Department of Law Enforcement  website showing a sexual predator or offender, hereinafter SP/SO, is registered at your property. He looks familiar to you. You look up the lease for the unit, and he is not on the lease. Whew, an unauthorized occupant. What if he is on the lease? Possibly he slipped through the cracks in the application process. How do you get him out fast?

 

Confirming Status and Address

 

Simply go to the Florida Department of Law Enforcement website and look up the individual in question. If the person is a SP/SO, it will show up and give a brief description of the offense along with a physical description of the individual and a photo. An important aspect of the information will be the address that the individual has registered with the FDLE. This address may be the address of the rental unit or some completely different address. If it is the address of the rental unit, you can contact the FDLE, as possibly the SP/SO is in violation of the rules regarding the terms of his probation if he is in too close proximity to children. If it is not the address of the rental unit, we urge you to call the FDLE and report the fact that the SP/SO appears to be living at your property, and that your address is NOT what is listed on the website. It is possible that the SP/SO has registered the new address but the website is not yet updated.

 

Contacting the Resident

 

You immediately should contact your resident, making her aware that you know of the presence of an unauthorized person living with her on the premises and that the SP/SO needs to leave. If you get any pushback from the resident, feel free to let her know that you are fully aware this person is a registered SP/SO, not that it really makes much difference. Note that we call this person an “unauthorized person” or “unauthorized occupant”. Many property managers think that just because the person is a SP/SO, this somehow makes the offense by the resident in having an unauthorized person worse, or that it will make it easier to evict the person. It makes no difference. An unauthorized poodle may be an unauthorized pet as much as an unauthorized pit bull, the latter of which may be a breed you restrict. The breed of the pet or the status of the person will not have much relevance at all on your ability to take action. The unauthorized occupant is an unauthorized occupant plain and simple, and your resident is in violation of the terms of the lease agreement if that person resides in the unit for a period longer than the lease allows. Most leases allow guests or visitors for period of 72 hours to 2 weeks, and then require the resident to get your permission for the “guest extension”, thus the person does not become unauthorized until such time as the allowed guest period under the lease is exceeded. Once you contact the resident, you will most likely get the usual story, “The person is just visiting”. If the person is indeed “visiting”, they will be allowed to visit. “Residing” there is another story. Once you can prove the person is not simply “visiting” but is residing on the premises, you will need to put in motion your usual procedure for dealing with the unauthorized occupancy lease noncompliance, by giving notice and proving the person is in fact residing on the premises and not just visiting.

 

The SP/SO Has Your Address Registered

 

Although this is unnerving to you and your other residents or neighbors, this makes our job easier. We do not have much to prove here. The SP/SO registered his address as your property address. You serve the proper notices, and if you do not get compliance, eviction can begin. The first notice is of course the Seven Day Notice of Noncompliance with Opportunity to Cure. This gives the resident 7 straight days, INCLUDING Saturdays, Sundays and legal holidays, to get the unauthorized occupant removed. If the person is not removed and you can prove it, a Seven Day Notice of Termination is then served, and after 7 more days elapse, an eviction can be filed if you can prove the SP/SO failed to timely vacate pursuant to the original cure notice. One of the ways you can prove this is to contact the FDLE and see if the address the SP/SO registered with it is still the unit address.

 

Visitor or Resident?

 

While we have dealt with this in other articles regarding unauthorized occupants, as a review, you will need to PROVE the person is not just visiting. A SP/SO is allowed to be a visitor, like it or not. Proving occupancy can be extremely difficult, because few if any property managers have 24 hour surveillance of the premises to definitively prove the person is occupying the unit as a resident and not simply coming and going occasionally or staying overnight once in a while. Ironically, if you saw a person coming each day to the unit at 9 a.m. and leaving at 3 p.m., you might assume he visits each day. If the same person came at midnight and left at 6 a.m., you would assume he is living there. These are all just assumptions and not solid evidence, and circumstantial evidence can make for tough proof cases.

 

Notification to Other Residents

 

Under Florida law, you are under no legal obligation to notify the other residents that a SP/SO is on the property. Much to your dismay, most will find out fairly quickly, as the word spreads fast. Some residents upon becoming aware that there is a SP/SO living near them will copy the FDLE printout and plaster your property or surrounding residences with the flyer. If you are approached by angry residents demanding what action will be taken, you simply tell them you are completely on top of the situation and are taking all legal steps to have the person removed, and that it is a legal process that takes some time.

 

The SP/SO is on the Lease!

 

There are times where you run a criminal background check and a particular offense will not show up. The applicant is approved and moves in. How do we handle this situation when this person turns out to be a registered SP/SO? Suppose the person is not listed on the lease as a “resident”, but is listed as an occupant. Listing an adult as an occupant is a major mistake that many property managers make. For some strange reason, property managers think that if someone does not qualify, he should just be listed as an occupant. Sometimes the applicant who is approved will ask you to list her spouse or friend as an occupant, not as a lease signer. ALWAYS have all adults who will be occupying the unit go through the entire application process and sign the lease.

 

The first thing you need to do if you realize that the actual lease signer or occupant is a SP/SO is to get out the application and examine if there was a misrepresentation made on the application. Go straight to the question where you ask if the applicant was convicted of a felony, and see what the answer is. If the applicant lied on the application, and your lease and/or the application has the proper wording that allows you to terminate the tenancy if a misrepresentation was made, you are in good shape. A Seven Day Notice of Termination will be given to the resident, and an eviction can be filed.

 

One problem we see in the question you ask of the applicant is that on most applications, you are only asking if the “applicant” was convicted of a felony. What about the “occupant”? Make sure your question always asks if the “applicant or any occupant” was convicted of a felony. This will help protect you if you made the additional mistake of not having all adults sign the lease. Check your application wording right now!

 

Unfortunately, there are some real, worst case scenarios due to mistakes made by the property manager. Suppose in the answer section of your criminal background question section, the applicant failed to circle either “yes” or “no”. Did the applicant lie or make a misrepresentation? The argument can be made that they did not lie, and you will be in a world of trouble. ALWAYS make sure that an application is completely filled out and no spaces are left bank or questions left unanswered. Not answering a question with the hopes that it will slip through the cracks is a clever technique by an applicant to trick an unwary property manager.

 

Some Practical Tips

 

Get an “admission” -- If your resident “admits” to you that she has this unauthorized occupant, SP/SO or not, this “admission” can be used in court. If the resident tells you and your leasing agent, “Yes, I know, he is looking for a place to live”, you and your leasing agent can testify to this in court. Of course the judge may not believe you, but it is part of our evidence we use.

 

Log your evidence -- Create a log of when the SP/SO’s car is parked on the property, when it comes and goes, and take pictures. This type of detective work helps you win cases.

 

Try the “Agreement to Vacate” – If your resident is “in love” enough with this SP/SO, the resident may agree to just move out. Get the resident to sign an Agreement to Vacate, and in our opinion, release her from the lease so you can get them out as soon as possible.

 

Try a written promise -- It may be possible to get your resident to sign a form stating that they will have the SP/SO removed at a date certain, and if the SP/SO returns after that date, she agrees that her tenancy is terminated. This memorializes the fact that the SP/SO is actually living there, and makes it more difficult for the resident to fight you.

Call your attorney -- The last thing you need is a revolt on your property and residents wanting to break their leases because of the presence of a SP/SO on the property. Many residents, especially those with children, will want to use this as a way to break their leases, and if the matter were to be litigated, a sympathetic judge may feel that particular residents were justified in breaking their lease. The minute you find out that a SP/SO is on the property, call your attorney immediately, so you and your attorney can develop a strategy for removal of the SP/SO, resident or both.

“Serving the Property Management Professional”

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We are preparing the lease for you under which the tenant is to make or may make rent payments by “direct deposit” into a bank account of the landlord.

 

In the event of nonpayment or an eviction, if the tenant direct deposits money after notice has been given or an eviction has been filed, it could be fatal to the eviction action.

 

In the event of a noncompliance of lease or law situation, the tenant may possibly direct deposit the rent while in an active noncompliance status, resulting in the landlord having to accept the noncompliance and not being able to take action at all against the tenant.  A tenant may have been nonrenewed and the tenant pays rent causing the nonrenewal to be jeopardized.

 

A tenant can and often will “partially pay” the rent with direct deposit, and the landlord will lose control of the situation.

 

If the landlord is not able to close out and cancel the bank account any time the owner wishes, a “direct deposit” arrangement can create a large problem for the landlord.

 

We will prepare the lease allowing for the “direct deposit,” but the landlord and property manager must understand the risks involved.

 

“Serving the Property Management Professional”

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The Law

Florida Statutes 83.59 defines when a Landlord has the right of possession of the property. The Landlord has the right of possession after an eviction has been completed, when a tenant surrenders the premises and when the unit has been abandoned. The law defines abandonment:

FS 83.59 (d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the Landlord has not been notified in writing of the existence of a probate estate or the name and address of a personal representative. This paragraph shall not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s.202, s. 221 (d) (3) and (4), s. 236, or s.8 of the National Housing Act as amended.

The Mechanics of the Tenant Death

Under the law if the following is in place, the unit is considered abandoned.

1. The last remaining tenant is deceased
    
2. Personal property remains on the premises
    
3. Rent is unpaid
    
4. At least 60 days have elapsed since death
    
5. The Landlord has not been notified in writing that there is an estate opened or that a personal representative has been appointed.

Why Do We Need to Wait 60 Days?

While it would have been ideal if this time period was shorter, it takes time for an estate to be opened, and this allows the relatives the time to hire an attorney and effectuate this if they intend to do so, and time for the Landlord to be notified.  Most of the time an estate will NOT be opened.

Now What About the Abandoned Property?

Getting possession of the unit is indeed the Landlord’s primary goal, but now we still have abandoned property left behind; FS 83.67, sets out when and how abandoned property can be removed. FS 83.67 allows the removal of personal property if the Landlord takes possession of the unit by “recovery of possession of the dwelling unit due to the death of the last remaining Tenant in accordance with 83.59(3) (d)”. As you can see, now both these statutes tie in nicely to allow for the unit to be considered abandoned and allowing the Landlord to dispose of the abandoned property.

Some Final Thoughts

Since a Landlord will not have to deal with this situation on a regular basis, we recommend that upon a tenant death, the Landlord contact us to make sure all the steps have been followed. As the statute indicates, some federally governed programs are excluded, and legal advice is always recommended to avoid a potentially expensive mistake.

 

TIPS           1. CHANGE THE LOCKS IF YOU THINK SOME OTHER PERSON HAS A KEY. ITS IS A GOOD IDEA TO CHANGE THE LOCKS NO MATTER WHAT.

2. A DURABLE POWER OF ATTORNEY OR ANY POWER OF ATTORNEY HELD BY SOMEONE HAS NO MEANING. THE POWER OF ATTORNEY DIES AND HAS NO MORE MEANING WHEN THE TENANT DIES.

3. AN EMERGENCY CONTACT HAS NO MEANING WHEN IT COMES TO ACCESS.

4. A RELATIVE HAS NO RIGHTS TO ACCESS OR POSSESSION OF THE PERSONAL PROPERTY OR THE UNIT.

5. HAVE A LICENSED AND INSURED HAZMAT REMEDIATOR CLEAN THE UNIT IF THIS IS NECESSARY, DISPOSING ONLY ITEMS THAT MUST BE DISPOSED OF.

6. IF A PERSONAL REPRESENTATIVE A/K/A EXECUTOR IS APPOINTED CALL US ASAP

“Serving the Property Management Professional”

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When the last remaining tenant on the lease dies, many legal issues arise, but after the landlord obtains exclusive possession, a security deposit issue will often remain.            

AFTER THE SOLE TENANT ON THE LEASE DIES, HOW DOES THE SECURITY DEPOSIT CLAIMS PROCESS WORK?           

In most cases, the deceased tenant will not have an estate.   If no estate is opened within 60 days of the tenant’s death, no one else is residing in the rental unit, and the rental unit is not part of a federally administered housing program (including a tenant receiving Section 8 benefits), Florida law allows the landlord to take back exclusive possession of the rental unit.     Taking back exclusive possession of the rental unit will typically trigger the 30-day period to send the formal deposit claim letter.     However, if no estate has been formed, there is no one in place to receive the statutory deposit claim notice or formally object to claims made against the security deposit.

IF NO ESTATE HAS BEEN OPENED, HOW CAN THE LANDLORD COMPLY WITH SECURITY DEPOSIT CLAIM PROCEDURES?   

Unless an estate is opened, the technical answer is that the landlord is not in a position to comply with the security deposit claims process.    The landlord could petition the probate court to open up an estate, so that a formal claim letter could be sent to a personal representative appointed by the probate judge.   However, unless the landlord is holding a very large security deposit, this process would normally not be practical or remotely cost effective.      

 

Although this q & a format does not address in depth remaining personal property on the premises, if the lease in effect does not contain a good abandoned property clause that allows for personal property disposition in the event of death, and significant personal property remains on the premises after the sole tenant dies, it may be advisable for the landlord to petition the probate court to open up an estate so that an eviction action can be filed; if that occurs, he estate will also be in place to later address the security deposit aspect.     

WHAT IF A FAMILY MEMBER IS DEMANDING THE SECURITY DEPOSIT?  

If no estate is opened, family members or acquaintances of the deceased tenant have no legal standing to demand the security deposit or object to claims made against the security deposit.   If the landlord wants to return some or all of the security deposit, making a refund check payable to a family member of the deceased tenant for some or all of the deposit may feel like the right thing to do, but it is not the correct legal answer.     

A disgruntled family member could make trouble for an agent disbursing deposit funds to a landlord by filing a complaint with the Better Business Bureau or an administrative complaint with a consumer protection agency or FREC, but that would not change the family member’s lack of legal standing to sue for or receive the security deposit.      

NO ESTATE HAS BEEN FORMED, BUT THE LANDLORD HAS MANY LEGITIMATE CLAIMS, INCLUDING UNPAID RENT AND A BIOHAZARD CLEAN-UP EXPENSE:  ISN’T RETENTION OF THE SECURITY DEPOSIT PROPER?       

When good faith claims exist against the security deposit, and no estate is ever formed, many landlords will retain some or all of the security deposit, even though the law may not technically support this result.  It is a gamble the landlord must decide upon knowing the risks.   

THE TENANT’S SON HAD PRIOR KEY ACCESS AND CLEARED OUT THE UNIT SHORTLY AFTER THE TENANT’S DEATH; THE UNIT WAS IN EXCELLENT CONDITION, AND THE LANDLORD SUFFERED NO LOSS OF RENT.   WHAT SHOULD HAPPEN WITH THE SECURITY DEPOSIT?       

If no estate was opened, but the landlord has no claims against the security deposit, the technical answer is the deposit money should eventually escheat to the State of Florida after 5 years. Please watch our video on this and read the article on Unclaimed Funds.  If the refund check is made payable to the son, the landlord will probably not hear another word about the matter, but that is not the correct legal answer.   Again, it is a gamble the landlord must decide on knowing the risks.

WHAT HAPPENS IF AN ESTATE IS FORMED WITHIN 60 DAYS OF THE TENANT’S DEATH?     

If an estate is opened, the landlord will need to deal with the Personal Representative regarding the possession issue. In many other states this is called the “Executor”.  After the landlord obtains  exclusive possession of the rental unit, a formal security deposit claim letter will need to be sent to the Personal Representative for any claims the landlord still seeks to make against the security deposit, and a separate estate claim may also have to be filed.    The Personal Representative will have legal standing to litigate a security deposit dispute.

Practical Considerations

Often an estate is never opened. This leaves the landlord holding security deposit funds that cannot be used and could end up the property of the State of Florida.  The landlord simply needs to decide what to do knowing that there are risks, albeit usually small.  

“Serving the Property Management Professional”

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Each year thousands of explosions and accidental fires occur due to the use and misuse of gas grills, resulting in of thousands of injuries, millions of dollars in property damage and approximately 20 deaths. Gas grills are dangerous and are usually prohibited in multi-family housing and condominiums, either due to company policy or fire code. 

The Mechanics of the Gas Grill Danger

1. Failure to use proper ventilation. Many residents fail to realize that gas grills emit carbon monoxide, an odorless gas which can kill. Resident sometimes will use a gas grill in an enclosed patio due to inclement weather or actually use a gas grill completely inside the premises.

 

2. Explosion of gas when during ignition. Most gas grill users at one time or another turned on the gas, had trouble lighting the grill, had the grill top down and experienced the mini-startling explosion when the grill finally lit. Usually the result is embarrassment and some singed hair. This explosion can be far greater if the grill user forgets the gas is still on and running and a significant delay occurs between turning on the valve and eventual ignition. A larger explosion can injure a user or cause fire to flammable materials which may be near the grill.

 

3. Venting. Propane tanks have a pressure relief valve which allows the propane to vent in the event the pressure inside the tank exceeds a manufacturers pre-set PSI (pounds per square inch). This is a safety mechanism to prevent the entire tank from rupturing in the event the pressure becomes too high. Pressure in a tank can become too high if the temperature around the tank is high, such as when the tank is sitting in the trunk of a vehicle, in the sun or in a very hot car. Propane has a chemical additive called ethyl mercaptan which is use to give the propane a distinct odor, but often this odor dissipates or is not detected by a user. The propane can be steadily venting, and a simple spark or lit cigarette can spell disaster.

 

4. Defective valves and hoses Any long time user of a gas grill will experience the gas grill falling apart in time. The first thing to go is the igniter, the burner on the side goes shortly thereafter, and with time, the hoses can deteriorate. Leaks can and do occur, and a build up of undetected propane can result in a major explosion and often a resulting fire.

So, Do You Really Want That Grill on the Rental Property?

A resident has no inherent right to use a gas grill on or near the premises, and the lease can simply prohibit its use.

Sample Clause

“No gas (propane or any other flammable gas or liquid) grill or tank or tanks containing any flammable gas or liquid shall be used or stored on or rental premises. The premises for the purpose of this section includes the interior of the premises, the exterior, any common areas, balconies, hallways, lanais, storage areas or garages.”

Dealing With the Resident Noncompliance

Some residents believe rules governing grills are meant to be broken. The manager needs to take swift, firm action against the resident to get compliance. Failure to take action will increase the manager’s liability and may result in a violation of the state or local fire codes. A prohibited gas grill is a violation of a curable nature. The resident needs to be served a “Seven Day Notice of Noncompliance With Opportunity to Cure. This gives the resident seven full days to remove the grill. Failure by the resident to remove the grill is a continuing noncompliance, and the manager then needs to document the presence of the grill after the seven day cure period has expired by way of photos, videos and witnesses. The manager should also consult with an attorney, who will probably recommend that the resident be served a Seven Day Notice of Noncompliance, Notice of Termination. Failure to vacate the premises will then result in an eviction action.

Suppose Rent is Due While the Resident Has the Grill and is Noncompliance?

Our office recommends that you do not accept rent from the resident if the resident is in noncompliance. Accepting rent is tantamount to giving the resident a green light for the month in which rent was accepted and can cause your notice to be voided out.

Self-Help Grill Removal

Our office never recommends that the manager conducts self-help by removing a resident’s personal property, and this could include a gas grill. The resident could accuse the manager of civil theft or even criminal theft. But, what if the Fire Marshall is demanding that the grill is removed and is ready to fine the manager or the manager is aware that the resident has the grill inside the rental unit? Possibly it will be permissible for the manager to remove the grill or at least the propane tank in such emergency circumstances, BUT we advise that you give your attorney a call before taking any self-help measures. 

“Serving the Property Management Professional”

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